The Civil Process Flashcards
1
Q
Estate
A
All property left by someone who has died
2
Q
Civil law
A
A violation of civil law does not directly harm the community, the person harmed sues the violator
3
Q
Court
A
The tribunal or forum, where the trial occurs, as well as the judge himself. The judge is the trier of law at the trial.
4
Q
Liable
A
Legally responsible
5
Q
Damages
A
An amount of money paid to atone for injury or economic loss
6
Q
Doctrine
A
A legal concept generally excepted by most courts which, although often not law, common offers guidance to the court. Legislatures will sometimes codify, or make into law, a popular doctrine.
7
Q
Joint and several liability
A
When multiple defendants may be found liable as a group (jointly), or separately (several).
8
Q
Retainer
A
Money paid to an attorney to secure her services. Also refers to the contract between the attorney and the client. When an attorney is retained, she works in a representative capacity on behalf of the client.
9
Q
Appearance
A
When an attorney acts on behalf of a client in court. This action may be either a personal appearance in front of the judge, or the filing of a document, such as a complaint or motion with the court on behalf of the client.
10
Q
Attorney-of-record
A
Once an attorney has entered an appearance, he, or she is the attorney of record in the case.
11
Q
Venue
A
The place of trial, the physical location.
12
Q
Diversity of citizenship
A
When is federal court hears a case based upon the fact that the parties are from different states, and the amount of money claimed as damages, exceeds the minimum set by federal statute, which is currently $75,000
13
Q
Plaintiff
A
The party who initiates the action by filing a complaint, claiming injury or harm.
14
Q
Statute of limitations
A
The time limit for filing suit. Suits filed after the time limit has run out will be dismissed. The clock generally starts to tick at the time the damage is occurred.
15
Q
Summons
A
Document that informs the defendant that he is being sued, and that he has a specific amount of time to respond.
16
Q
Complaint
A
The pleading that initiates litigation. Filed by the plaintiff, the complaint contains the general allegations against the defendant. It is served with the summons.
17
Q
Parties
A
Individuals or groups involved in a legal action.
18
Q
Cause of action
A
A legally valid reason to sue, one of the required elements of a complaint.
19
Q
Information and belief
A
A common legal phrase that qualifies a statement as being a fact only to the best knowledge of the person making a statement. Equivalent to saying “this is what I believe happened”.
20
Q
Defendant
A
The party against whom a complaint is filed.
21
Q
Ad damnum clause
A
Elements of a complaint that asks for damages; also called “wherefore clause” or “ prayer relief.”
22
Q
Co-defendants
A
Multiple defendants in a legal action.
23
Q
Pleading
A
A document filed with the court, asking the court to take some specific legal action. A motion asks the court to rule on a procedural matter. A pleading states a parties position, and a legal action.
24
Q
Allegation
A
A fact claimed by a party.
25
Jury trial
A jury is a group of citizens selected from the community to determine the outcome of a case. In most cases, either party has the right to demand a jury trial, but if both parties agree, the judge may act in place of the jury. This is most common and very technical cases, such as a complex contract situation.
26
Filed
A document is filed when it is presented to the clerk of the court. All documents, and any copies are date stamped by the clerk of the court at the time of filing.
27
Service or served
The presentation of legal papers.
28
Service of process
Process is the summons and complaint. Service of process is the delivery of the summons and complaint upon the defendant, in a court action. Service is usually done in person. However, service may, and some circumstances, be made by mail, I buy publishing a notice in a newspaper, or by serving a company. Serving a company is often accomplished by serving a registered agent (someone who accept service on behalf of a company).
29
Personal service
Service of legal papers upon an individual, as opposed to a business or registered agent.
30
Process server
A person who is permitted by law to serve legal documents; must be at least 18 years of age, and not a party to the action.
31
Affidavit
A written statement of fact sworn to Underoath.
32
Affiant
One who signs an affidavit
33
Attest
To swear
34
Notory public
A person authorized to administer the oath, and to verify that an individual signs a legal document.
35
Jurisdiction
Authority of a court to hear, and decide a case
36
In personam jurisdiction
Jurisdiction over a person
37
In rem jurisdiction
Jurisdiction over the controversy, often property
38
Quasi in rem jurisdiction
Jurisdiction over property, even though the property is not the controversy.
39
Lis pendens
Attachment, to the title of a piece of property, notifying any potential purchaser, that the title is subject to the outcome of litigation.
40
Lien
Attachment to the title of a piece of property, preventing its sale until a previous financial obligation has been satisfied.
41
Rules of court
Laws that govern the procedures of trials.
42
Answer
The pleading filed by the defendant, in response to the allegations contained in the complaint.
43
Affirmative defense
An admission that a specific act did occur, arguing, that the fault lies not with the defendant. Intended to eliminate, or reduce a plaintiffs damages.
44
Counterclaim
A claim by the defendant against the plaintiff. Sometimes the only determining factor as to whether a claim is an affirmative defense or a counter claim, is whether the defendant is alleging damages. If this is the case, it becomes a counter claim. A counter claim is, in essence, a pleading, presenting the defendants complaint against the plaintiff.
45
Cross claim
A claim by one defendant against a co- defendant. One form of cross claim occurs when one original, defendant, sues, another original defendant, but third-party complaints are also cross claims.
46
Third-party complaint
Pleading where a defendant sues someone not yet a party to the action.
47
Reply
This pleading is the plaintiffs response to a defendants counterclaim.
48
Default judgment
A judgment, by the court, in favor of the plaintiff, based on the fact that the defendant failed to respond in a timely fashion.
49
Motion
A request that the court take a specific procedural step. Pleadings usually state specific legal positions about the matter before the court, while motions, such as a motion to extend timed to respond, are procedural in nature, and act as a request for an order.
50
Litigation
The process of asking a court of law, to decide the outcome of a dispute; a lawsuit.
51
Contest
To challenge
52
Discovery
The methods, whereby one party obtains relevant information on a case from the other party. The method that attempts to even the playing field between parties by exposing all relevant facts, upon which the court will ultimately base its
decision. Discovery is between the parties, and does not directly involve the court, although the certificate of mailing for each document is often filed. Five common methods of discovery …
53
Interrogatories
Questions to the opposing party that must be answered under penalty of perjury.
Example: describe the events leading to the accident.
54
Request for admissions (discovery)
Written statements the opposing party must admit, or deny under penalty of perjury, failure to respond within a specified period of time, in most cases 30 days: means that the statements are assumed to be admitted.
55
Request for production (discovery)
A request that documents or other physical items be provided for inspection. Also referred to as a request for production or inspection of documents or property.
56
Request for mental or physical examination (discovery)
Request that the other party, usually the plaintive, be subjected to a mental or physical examination. This is a form of discovery that may require court approval, so that it cannot be used to intimidate.
57
Depositions (discovery)
Oral questions that must be answered under oath, depositions, take place out of court, most often in an attorney’s office, with a court reporter, transcribing the testimony. A court reporter is a person trained to use stenographer machine to take testimony. Depositions can take place for the purpose of questioning the opposing party or for questioning witnesses. Depositions are sometimes videotaped an audio taped./
58
Certificate of mailing or certificate of service
When a document is filed with the court, or when discovery is sent to a party, a certificate of mailing is usually attached. The certificate, a test that is true, and correct copy of the document was sent to all parties involved in the litigation. The certificate should be signed by the person who places it in the mail, unless the state requires an attorney signature.
59
Order
An official command by the court, usually demanding that one or both of the parties perform an act.
60
Hearing
A proceeding in court, where the judge and both parties are present.
61
Privilege
The right to refuse to testify, or to prevent someone else from testifying.
62
Ex parte hearing
A hearing at which only one party is present, such as a hearing on a motion for a restraining order. Ex parte hearings are not common..
63
Third-party defendant
The party against whom the third-party complaint was filed. The defendant in the original complaint becomes the “third party plaintiff.”
64
Motion to dismiss
Asking the court to dismiss a case without going to trial.
“Dismissal with prejudice”: a case is dismissed, and may not be brought again, because the court has made up his mind about the case.
“Dismissal without prejudice”: a case is dismissed, but may be filed again, because the court has not made up its mind about the matter.
65
Trial brief
Also called a trial memorandum or points and authorities, this document is filed with the court to argue a legal issue, relying on law to support the parties position. Often filed in support of a motion, that attempts to convince the reader and only argues points favorable to the client
66
Motion for summary judgment
A pretrial motion, asking the court to determine the outcome of the case based on the pleadings and motions, rather than going to trial with a jury. The argument is that there are no material facts in dispute, only law, and since the jury is the trier of fact, there is no need for a jury or trial.
67
Magistrate
A judicial officer who may preside over hearings, a magistrate does not have all the powers of a judge. He, or she ordinarily deals with procedural matters.
68
Pre-trial conference
A meeting between the court and the parties for clarification of procedural matters, and to promote settlement
69
Stipulation
An agreement between council for the parties, regarding a fact, issue, or point that will not be disputed at trial.
70
Settlement agreement
An agreement to end the litigation for an agreed upon consideration, usually money
71
At issue or in issue
A legal question to be answered by the court.
72
Evidence
That which tends to establish or disprove a fact.
73
Direct evidence
Evidence from personal observation that tends to establish a fact without the need for inference.
Example: a witness who sees a gun fired, can give direct testimony as to a shooting.
74
Circumstantial evidence
Evidence of one fact that requires an inference to establish another fact.
Example: a witness who hears a shot, turns around and sees a man holding a gun, can give circumstantial evidence as to a shooting.
75
Oral evidence
Evidence given orally, also called testimonial evidence.
76
Physical evidence
Evidence that can be touched, also called, tangible or demonstrative evidence.
77
Admissible
The evidence that will be allowed to be considered by the jury. The jury will decide whether or not to believe the evidence.
78
Docket
The courts official calendar for trials, and hearings to take place in that court room.
79
Set for trial
To set a date for trial, upon which the attorneys, parties, and Court agree.
80
Jury
A group of citizens who will be called upon to hear the evidence and render a verdict. The jury is the trier of fact.
81
Jury panel
The group from which a jury will be selected.
82
Voir dire (for the jury)
To question prospective jurors.
Challenge for cause: a method of dismissing A juror for good cause shown. Challenges for cause are unlimited number.
Peremptory challenge:
A method of dismissing a juror, for which no reason to be given, these challenges are limited in the number, commonly three or six.
83
Bailiff
Court employee who keeps order in the courtroom.
84
Alternate juror
Person who sits to hear the entire case with the jury, but he will not deliver it, or vote on a verdict, unless one of the jurors is dismissed.
85
Opening statement
Presentations made by the attorneys at the beginning of a trial, stating the facts they intend to prove during the trial.
86
Burden of proof
The degree to which something must be proved at trial. The party making an allegation, or claim, generally bares the burden of proof.
87
Preponderance of the evidence
The burden of proof in civil cases means that it is more likely than not that a fact is as a party alleges it to be. The burden of proof in criminal matters is beyond a reasonable doubt, a higher standard.
88
Rule on witnesses
A rule that states that a witness in a case may not be in the courtroom during the testimony of other witnesses. Mostly used in criminal cases, it may be used in civil cases at the judges discretion.
89
Subpoena
The document issued under authority of the court, to compel the appearance of a witness.
90
Subpoena duces tecum
A document issued under authority of the court, to compel the appearance of a witness, and ordering the witness to provide specific documents.
91
Objection
A formal challenge by opposing counsel to evidence or questions asked of a witness.
92
Bench conference
A discussion between the judge and attorneys, usually conducted at the judges bench, so the jury cannot hear what is said.
93
Prejudicial
The tendency to cause bias, even where no bias has existed previously.
94
Probative value
The value of pursuing an investigative, or probing line of questioning.
95
Preserving the record
An attorney, making statements or repeating a previously overruled motion, to protect any right to appeal at a later point.
96
Sustain
To affirm an objection
97
Competency
Legal capacity to testify. The elements of competency are:
Understanding the obligation to tell the truth
Knowledge of the topic of the testimony
Ability to communicate
98
Examination
Questions directed at a witness, who is under oath in court, or at a deposition.
99
Direct examination
Questioning the witness first. The party calling the witness to the stand conducts the direct examination.
100
Cross examination
After direct examination, the party may cross, examine the witness, but as limited to the topics brought up under direct questioning.
101
Re-direct examination
The party conducting direct examination conducts the redirect examination to clarify, matters brought up during cross. The party conducting redirect cannot introduce a new line of questioning, but is limited to the matter is discussed during cross.
102
Re-cross examination
The party conducting cross-examination conducts the red cross examination, but has limited to Matters brought up during redirect.
103
Proximate cause
The event or point at which a series of incidence begins ultimately resulting in an event with damages.
104
Negligence
Establishment of a duty, followed by a breach of that duty, resulting in damages. In order to be actionable, the negligence must have been the proximate cause of the damages.
105
Excuse the jury
The judge instructs the jury to leave the courtroom temporarily
106
Grounds
Reason or reasons
107
Relevant
Tending to prove or disprove a fact in issue
108
To strike from the record
To have certain testimony removed from the record of the trial. This is usually accompanied by an admonition to the jury that, when deliberating, they are not to consider the testimony they just heard.
109
Clerk of court
The person or persons responsible for the court files and exhibits.
110
Exhibit
A physical item presented to support an argument.
111
Introduction of evidence
Attorneys must “move” for a piece of evidence to be admitted into evidence. If the motion is granted, the evidence will be assigned a number or letter and labeled.
112
Resting a case
When a party is finished presenting evidence, it rests
113
Move
To present a motion to the court
114
Motion for directed verdict
The court is asked to decide the outcome of the case because the plaintiff has failed to establish a prima Facie case. (Prima facie: “based on the first impression”)
115
Adjourn
To halt temporarily, but not end, the trial
116
Prima facie case
A case that is sufficient on its face. This means that, if all facts, alleged by the plaintiff are eventually proved true. At trial, the plaintive deserves to be awarded damages. A prima Fasce case must exist at all stages of the proceedings from the filing of the complaint through trial. If, at any point during litigation a party can establish that a prima fascia case does not exist, the case should be dismissed. 
117
Take under advisement
The court delays a ruling on a motion so that the motion may be considered
118
Expert witness
A person who has been qualified by the court to have experience and knowledge in a specific area, and who will be allowed to express opinions related to his area of knowledge
119
Qualify
To establish a witness’s expertise in a specific area
120
Voir dire (of witnesses)
To question a potential witness to determine his or her competency, or the appropriateness of his or her testimony
121
Closing argument
Each attorney, addressing the jury, or the court at the end of the trial, attempting to persuade prior to deliberations.
122
Jury instructions
Guidelines to the jury about how the law is to be applied, and the facts that may be considered during its deliberations. May also be referred to as a charge to the jury.
123
Deliberations
A jury’s discussion of the case, in private, following the trial, with the goal of rendering a verdict.
124
Verdict
The final conclusion of the jury
125
Foreperson
The member elected by the jury to lead the deliberations, and speak for the jury.
126
Motion for judgment NOV
A motion asking the court to disregard the jury‘s verdict and replace it with the courts own verdict. NOV stands for Non Obstante Verdicto.
127
Judgment
The final conclusion of the court. In civil cases, the judge usually enters the jury‘s verdict into judgment. However, the judge has the power to alter or overturn the jury‘s verdict in criminal cases. The judge cannot overturn a jury’s finding of not guilty, but the court may overturn a guilty verdict in the interest of justice.
128
Additur
When the judge adds to the amount, a jury has awarded. Typically the judge will give the party who must pay the award. The choice of an increased award, or a new trial will be granted to the other side.
129
Remittitur
The process, whereby a judge subtracts from the amount of damages, a jury has awarded. In fact, the judge gives the party awarded damages, the choice of either excepting a lesser amount, or a new trial will be granted to the other side.
130
Motion for new trial
A request that the judge order a new trial because of procedural errors. The party must generally file this motion in order to later appeal, fulfilling the obligation to exhaust all available remedies.
131
Appeal
To ask the court at the next higher level to determine whether the trial court erred
132
Appeal as a matter of right
A party who loses in the trial court has the right to have his or her case heard by the next highest appellate level court in civil court. There are circumstances in which the appellate level court has no choice, but to hear that appeal, such as some death penalty cases in state criminal courts.
133
Waive
To give up a right. A waiver, maybe either voluntary, or the result of an action, or inaction, by the party.
134
Stay
To delay the implementation of the court’s order.
135
Notice of appeal
Written notification in motion form that a party intends to appeal. Most court rules require that the motion to be filed with the trial court, the appellate court, and sent to any other parties involved in the action. A party has the automatic right to one appeal at the next highest court
136
Bond on appeal
A sum of money held by the court to ensure that the funds from the award will be available after the appellate process.
137
Res judicata
Doctrine stating that a case that has decided on its merits may not be re-litigated.
138
To bar
To prevent or stop
139
Appellant or Petitioner
The party initiating an appeal
140
Appellee or Respondent
The party responding to an appeal
141
Record
The official collection of all pleadings, exhibits, motions, orders, and transcript of the trial.
142
Transcript
The word-for-word typed record of what occurred at trial.
143
Appellate brief
A written argument by a party covering the issues, called “points of error”, on appeal. The brief by the appellant is usually referred to as the “appellate brief.” The brief filed by the respondent is usually referred to as the “response brief.”
144
Points of error
The questions that are the basis for the appeal. Also called “issues on appeal,” these questions point to potential errors of the trial court.
145
Response brief
A written answer to the appellate brief.
146
Oral argument
An oral presentation to an appellate court. The party must request an oral argument; that request is not always granted.
147
Panel of justices (or judges)
The portion of an appellate-level court that hears a case. Usually, a panel is made up of three judges.
148
En banc
When the entire appellate level court sits to hear and decide a case, indicating the case has a high level of importance.
149
Opinion
Written decision of the court
150
Majority opinion
The strongest form of opinion. When more than fifty percent of the court agrees on a decision. A majority opinion is law until it is superseded or overturned.
151
Affirm (majority opinion)
The appellate court agrees with the decision of the trial court.
152
Reverse (majority opinion)
The appellate court disagrees with and nullifies the decision of the trial court.
153
Modify (majority opinion)
The appellate court alters the decision of the trial court.
154
Remand (majority opinion)
The appellate court sends the case back to the trial court for further deliberation.
155
Concurring opinion
Opinion of one or more judges that agrees with the results of the majority, but arrives at the result for different reasons.
156
Dissenting opinion
Opinion that disagrees with the majority opinion
157
Petition
To make a formal request to the court. Some states refer to complaints as petitions, depending on the type of action filed. For example, a “petition for dissolution of marriage” would involve a petitioner and respondent rather than a plaintiff and defendant.
158
Rehearing
A second chance to present arguments to the court on the same issues.
159
Petition for writ of certiorari
This document asks permission to appeal. The vehicle by which the case is taken from the court of appeals (state or federal) to the Supreme Court (state or federal), also the means by which a case is taken from a state Supreme Court to the U.S. Supreme Court. The writ of certiorari is issued by the higher court. If the higher court approves the petition, the higher court will review the case if the higher court denies the petition, the decision of the lower court stands.
